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Himachal Pradesh High Court · body

2013 DIGILAW 181 (HP)

JAI NAND SHARMA v. H. P. S. E. B. LTD

2013-03-15

RAJIV SHARMA

body2013
JUDGEMENT RAJIV SHARMA, J. 1. PETITIONER was appointed Junior Engineer in the respondent Board on 16.7.1984. He was promoted to the post of Additional Assistant Engineer after completion of eight years ' service. He was further promoted to the post of Assistant Engineer in the month of September, 2003 and Senior Executive Engineer in the month of September, 2008. He retired on 31.1.2009. Deputy Secretary (GE) sent a communication to the Chief Accounts Officer on 26.2.2009 requesting him to withhold an amount of Rs. 10,34,746/ from the retiral benefits of the petitioner until and unless the clearance of MAS/completion reports and regularization of excess over sanctioned estimates of the works executed by the petitioner. The Accounts Officer (Pension) also sent a communication to the Accounts Officer (P.G.) vide Annexure P-2 on 21.9.2011, according to which a sum of Rs. 10,34,746/ was recoverable from the petitioner, which was required to be adjusted accordingly from other dues payable to the petitioner, i.e. from the arrears of the revised pay scale and leave encashment etc. 2. MR . Sanjeev Kumar Suri has vehemently argued that no notice has been served upon the petitioner before the issuance of Annexures P-1 and P-2 dated 26.2.2009 and 21.9.2011, respectively. He then argued that the petitioner has already complied with the directions issued by the officers of the Board from time to time and the respondent Board could not be judge of its own cause. Ms. Anjula Khajuria has submitted that the account of MAS/completion reports of various works and excess over to sanctioned estimate works is lying pending against the petitioner and the amount has not been regularized despite issuance of notices to this effect to the petitioner. 3. I have heard the learned counsel for the parties and have gone through the pleadings carefully. 4. WHAT emerges from the facts enumerated hereinabove is that the petitioner has retired from service on 31.1.2009. Respondents have placed on record Annexure RA-1 to 13 together with detailed report of works of audit party for the year 2003 to 2005 and for the year 2007 and 2008 vide Annexure RA 14 to 23. However, fact of the matter is that the respondent Board has taken a decision to withhold a sum of Rs. 10,34,746/ from the retiral benefits and other dues, i.e. arrears of revised pay scale and leave encashment etc. However, fact of the matter is that the respondent Board has taken a decision to withhold a sum of Rs. 10,34,746/ from the retiral benefits and other dues, i.e. arrears of revised pay scale and leave encashment etc. Petitioner has suffered civil and evil consequences due to issuance of Annexures P 1 and P 2 dated 26.2.2009 and 21.9.2011, that too, after retirement. No notice has been issued to the petitioner before it was decided to deduct a sum of Rs. 10,34,746/ from the retiral benefits and other dues payable to the petitioner. In view of this, the action of the respondent Board to withhold a sum of Rs. 10,34,746/ is also arbitrary, thus, violative of Article 14 of the Constitution of India. Respondent Board could not become judge of its own cause by way of withholding retiral and other benefits of the petitioner. The dues, if any, are required to be determined at least two years before the retirement after affording reasonable opportunity to the employee in the spirit of rule 71 of the Central Civil Services (Pension) Rules, 1972. The salary and other retiral/pensionary benefits, including leave encashment, are property within the meaning of Article 300 A of the Constitution of India and they cannot be withheld without authority of law. The Division Bench of this Court in Kamlesh Saxena and others versus State of H.P. and others, I.L.R. 1985 page 605 has held that the requirement of affording a reasonable opportunity to the petitioners or any of them to show cause at the stage of the final ascertainment of Government dues, if any, and of ordering their recovery from the DCRG amount payable to them, is not merely an empty formality but a substantial requirement of the rules of natural justice. The Division Bench has further held that if such an opportunity had been afforded they could have pointed out that there was no overpayment either as a result of a mistake of law or of fact, or that the Government was not entitled to recover the alleged overpayment, spread over a period, after such a lapse of time. The Division Bench has further held that DCRG is a property within the meaning of Article 300 A of the Constitution of India and the same can be withheld under authority of valid enacted law. The Division Bench has further held that DCRG is a property within the meaning of Article 300 A of the Constitution of India and the same can be withheld under authority of valid enacted law. The Division Bench has further held that the Government cannot be judge in its own cause in the absence of statutory provisions empowering it to act as such and it cannot evade having recourse to the remedy provided by the ordinary law on the specious grounds that it will have to engage in unnecessary litigation. The ascertainment and recovery of Government dues, other than those covered by the Pension Rules, have to be done by means of a properly constituted suit in a court of competent jurisdiction, especially when there is a dispute. The Division Bench has held as under: 6. The fact that pension includes gratuity (including Death cum Retirement Gratuity) needs no reiteration and is beyond the pale of dispute in view of the definition of the words "gratuity " and "pension " in clauses (j) and (o) respectively of sub rule (1) of Rule 3 of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as "the pension Rules "). Pension is not a bounty payable on the sweet will and pleasure of the State. The right to pension is a valuable right vesting in a government servant. The grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect, but the right to receive pension flows to the employee not because of the said order but by virtue of the Rules (See: Deokinandan Prasad v. State of Bihar and others, AIR 1971 SC 1409 ). Indeed, till the deletion of sub clause (f) of Clause (1) of Article 19 and of Article 31 by the Constitution (Forty fourth Amendment) Act, 1978, with effect from June 20, 1979, the right to receive pension was regarded as "property " and, therefore, fundamental right within the meaning of those constitutional provisions (see: Deokinandan 's case supra) and a retrospective amendment in the Pension Rules made in exercise of the powers conferred by the proviso to Article 309 read with Article 313, which had the effect of depriving or abridging the fundamental right of a government servant to receive pension according to the rules in force on the date of his retirement, was struck down as void (See: Salabuddin Mohammad Yunus V. State of Andhra Pradesh, AIR 1984 SC 1905 ). With the simultaneous deletion and enactment of sub clause (f) of Clause (1) of Article 19 and Article 31 on one hand and Article 300 A on the other, the right to property has ceased to be a fundamental right but it still retains the character of a constitutionally recognized legal right. Since the right to receive pension was held to be "property " under Article 19(1) (f) and Article 31(1), it must be regarded as falling within the coverage of Article 300 A which provides that no person shall be deprived of his "property " save "by authority of law ". Article 300 A thus safeguards the right to receive pension against executive interference which is not supported by law and "law" here means "enacted law " or "State law ". Besides, such law must be a valid and binding law under the provisions of the Constitution having regard to the competence of the legislature and the subject it relates to and should not infringe on any of the fundamental rights which the Constitution provides for. It is apparent, therefore, that the substantive or procedural provisions of such law or the executive action supported by such law cannot be arbitrary, unfair, unjust, oppressive or unreasonable (See: A.K. Gopalan V. State of Madras, AIR 1950 SC 27 and Smt. Maneka Gandhi V. Union of India and another, AIR 1978 SC 597 wherein the word "law " occurring in Article 21 has been given similar meaning and has been held to be subject to similar limitations). The antiquated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right, and, therefore, not enforceable through Court, has thus been swept under the carpet by these judicial dicta of the highest Court which have interpreted the relevant constitutional provisions and statutory law. 12. Rule 50 authorities the payment of DCRG to the family of a Government servant who dies while in service after completing the qualifying service. Rule 80 C deals with the adjustment of Government dues from the DCRG becoming payable to the family of a deceased Government servant. Sub rule(1) of Rule 80C authorizes the recovery of the dues pertaining to Government accommodation from the DCRG payable to the family. Since the recovery of such dues is not involved in the present case, it is not necessary to dwell upon the provisions of the said sub rule. Sub rule (2) reads as under: "(2) Dues other than those referred to in sub rule(1): The Head of Office shall, within one month of the receipt of intimation regarding death of a Government servant, take steps to ascertain if any dues as referred to in Rule 71 excluding the dues pertaining to the allotment of Government accommodation were recoverable from the deceased Government servant. Such ascertainable dues shall be recovered from the amount of death cum retirement gratuity becoming payable to the family of the deceased Government servant. " On a bare reading of the sub rule, it is apparent that what can be recovered thereunder from the amount of DCRG becoming payable to the family of a deceased Government servant are ascertainable Government dues (other than those pertaining to the allotment of Government accommodation). However, before such recovery can be effected, the Head of Office is under a duty to take steps, within one month of the receipt of intimation regarding the death of the Government servant, to ascertain whether such dues were recoverable from the deceased. Even assuming that the expression "Government dues " takes in all kinds of dues on the footing that the definition thereof being inclusive in nature is extensive in character, the Head of Office must find that the sum sought to be recovered in a given case satisfies the character of dues and that such dues are ascertainable and were recoverable from the deceased Government servant. 14. 14. The next question which must inevitably arise and which must be decided is whether the process of ascertainment of Government dues will require an inquiry being held or conducted by the Head of Office and, if so, what is the true nature and character of such inquiry. On the interpretation of sub rule (2) of Rule 80 C given above, it is apparent that the Head of Office of the deceased Government servant will, in the first instance have to gather from different sources all the material particulars to satisfy himself whether any sum(s) was factually owed by the deceased to the Government and, if so, what precisely was such amount(s). It will have to be determined next whether the ascertained sum(s) was legally due and recoverable from the deceased Government servant. In the very nature of things, several questions of fact and law will ordinarily arise in this process which the Head of Office will have to determine and some sort of any enquiry, suitable to the occasion and appropriate in the circumstances of the case, is thus inevitable on his part in order to arrive at a just, proper and legal decision in the discharge of the duty legally entrusted to him under the law. The association of the family of the deceased Government servant with such an enquiry will be essential either to gather facts or to seek clarifications on issues of fact and law. That apart, the process of ascertainment of Government dues cannot but be regarded as quasi judicial in nature, since, the ultimate decision may result in the recovery of such dues from the amount of DCRG and may thus involve civil consequences for the family of the deceased Government servant. The duty of act judicially and to afford a reasonable opportunity of being heard to an authorized representatives(s) of the family of the deceased Government servant in the course of the inquiry must, therefore, be regarded as implicit in sub0rule (2) of Rule 80 C. Unless the sub rule is so understood and enforced, it would be exposed to the vice of unconstitutionality. A reasonable opportunity of hearing coupled with the duty to arrive at a just and fair decision pursuant to an inquiry must, therefore, be regarded as sine qua non to the exercise of power of recovery of the Government dues from the amount of DCRG payable to the family of the deceased Government servant. 20. The ultimate question which survives for consideration is whether the petitioners are entitled to any interest on account of the delayed payment of the DCRG amount. In State of Kerala and others v. M. Padamanabhan Nair, AIR 1985 SC 356 , the law on the subject has been declared in no uncertain terms by the highest Court. The pertinent observations made in that case are reproduced hereinbelow: "Pension and gratuity are no longer any bounty to be distributed by the Government to its employer on their retirement but have become, under the decisions of this Court, valuable rights and property in their hands and any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment." " .....The necessity for prompt payment of the retirement dues to a Government servant immediately after his retirement cannot be over emphasized and it would not be unreasonable to direct that the liability to pay penal interest on these dues at the current market rate should commence at the expiry of two months from the date of retirement. " These observations laying emphasis on the prompt payment of the retirement dues to a retiring Government servant on the pain of penalty of payment of interest at the current market rate must apply with still greater force to the payment of the pensionary benefits to the family of a Government servant dying while in service since, in the latter case, the family is, more often that not, left without any means to support itself on the death of the bread winner and, in such circumstances, any undue or unjustified delay in the payment of the beneficiary benefits to the beneficiaries cannot but be regarded as culpable. The claim for interest at the rate of 12 percent per annum advanced by the petitioners on account of the delayed payment of the DCRG amount to them must be decided against the aforesaid backdrop as well as in light of the obligation cast under the Pension Rules on the Head of Office to determine and authorize the payment of the amount of DCRG, or a portion thereof, as the case may be, to the family of the deceased Government servant, within the time limit laid down in the relevant Rules. 21. Rule 77 of the Pension Rules enjoins a duty upon the Head of Office, who has received an intimation about the death of a Government servant while in service to ascertain, inter alia, whether any DCRG is payable in respect of the deceased government servant and, if so, to address the person concerned for making a claim in the prescribed form. Under Rule 78, while taking action to obtain such claim from the family of the deceased, it is the duty of the Head of Office to simultaneously undertake the completion of Form 18 (Form for assessing and authorizing the payment of family pension and death cum retirement gratuity when a Government servant dies while in service). This work is required to be completed within one month of the date on which intimation regarding the date of death of the Government servant has been received. The process of determination of qualifying service and qualifying emoluments is also required to be completed by the Head of Office within one month of the receipt of such intimation and the amount of DCRG is to be calculated accordingly. Similarly, under Rule 80 C (2), within the same time limit of one month, the Head of Office must take steps to ascertain if any Government dues excluding the dues pertaining to the allotment of Government accommodation, were recoverable from the deceased Government servant. Rule 80 provides that on the receipt of the claim, the Head of Office shall complete the prescribed Form 18 and send the said Form in original to the Accounts Officer with other relevant documents not later than one month of such receipt. Rule 80 provides that on the receipt of the claim, the Head of Office shall complete the prescribed Form 18 and send the said Form in original to the Accounts Officer with other relevant documents not later than one month of such receipt. While forwarding the said Form, the Head of Office is required to draw the attention of the Accounts Officer : (a) to the details of the ascertained Government dues outstanding against the deceased Government servant, which are recoverable out of the DCRG amount and (b) to the amount of gratuity to be held over partly for adjustment of Government dues which have not been assessed and partly as a margin for adjustment in the light of the final determination of the gratuity. The maximum amount of gratuity to be held over for the purpose stated in (b) above must be limited to ten percent of the amount of gratuity or rupees one thousand, whichever is less. Under Rule 80 A, after the documents referred to in Rule 80 have been sent to the Accounts Officer, the Head of Office is under an obligation, inter alia, to draw hundred percent of the gratuity duly determined. For the said purpose, the Head of Office must issue a sanction letter in favour of the claimant(s) indicating a) the amount of the hundred percent of the gratuity duly determined and (b) the amount(s) recoverable out of the gratuity under rule 80. After the issue of the sanction letter, the Head of Office is duty bound to draw the amount of hundred per cent gratuity worked out after deducting therefrom the above mentioned recoverable sums and to disburse such amount immediately after the same has been drawn accordingly. Under Rule 80 B, the Accounts Officer is under a duty to check and complete Form 18, within a period of three months from the date of receipt of the documents referred to in Rule 80, and, inter alia, to assess and to determine the amount of the balance of the deceased Government servant and to intimate to the Head of Office the amount so determined with the remark that said amount be drawn and disbursed by him to the person or persons to whom the provisional gratuity has been paid. If the amount of gratuity disbursed by the Head of Office proves to be larged than the amount finally assessed by the Accounts Officer the beneficiary is not to be required to refund the excess. Rule 79 lays down the steps which are required to be taken in case the service records are incomplete and, accordingly, in so far as it is relevant for the present purposes, if the deceased Government servant and rendered more than twenty four years of qualifying service, and the entire service is not capable of being verified and accepted but the service for the last five years has been verified and accepted the family of the deceased Government servant has to be allowed, on provisional basis, the DCRG equal to 12 times of the emoluments and the final amount must be determined by the Head of Officer on the acceptance and verification of the entire spell of service which shall be done by the Head of Office within a period of six months from the date on which the authority for the payment of provisional gratuity was issued. The balance, if any becoming payable as a result of the determination of the final amount of DCRG has then to be authorized to be paid to the beneficiaries. 22. The above time bound procedure has been laid down in order to facilitate the expeditious issue of the authority for the payment of family pension and death cum retirement gratuity so that the family of the deceased Government servant is not put to hardship. The Head of Office has to ensure that action to obtain the claim or claims from the beneficiaries, completion of Form 18 and assessment of Government dues is initiated simultaneously. Special efforts have to be made to get the claims in the respective Forms from the family of the deceased Government servant as early as possible. Where the family is residing in the place of duty of Head of Office, the Forms and documents which are required to be completed by the family may, if possible, be obtained personally and for this purpose the services of the Welfare Officer could be utilized. Where the family is residing in the place of duty of Head of Office, the Forms and documents which are required to be completed by the family may, if possible, be obtained personally and for this purpose the services of the Welfare Officer could be utilized. If the family is residing outside the place of the duty of the Head of Office all the Forms and other documents which are required to be sent to the family should be forwarded with clear instructions so that unnecessary correspondence is avoided [Vide Government of India Ministry of Finance O.M. No. F. 11(9) E.V (A)/77, dated the 15th February, 1979]. 23. Now, in the instant case, petitioner No. 1 had forwarded the Family Pension DCRG papers to the second respondent on June 30, 1983 that is at the expiry of a period of one month from the death of her husband, with a request that the case be finalized at an early date in order that she may not have to undergo any financial hardship. The second respondent took as many as about four months to forward the papers to the third respondent under the cover of a letter dated October 22, 1983 and the papers were actually received by the third respondent on November 19, 1983. The letter forwarding the pension papers contained a request to the effect that the DCRG might be withheld till further instructions. On February 6, 1984, the second respondent wrote to the third respondent to withhold a sum of Rupees 10,607.31 out of the gratuity amount till further instructions but a request was made that the balance amount be released to the family of the deceased. The third respondent, however, could not release the balance amount since, according to him, there was overpayment of pay and allowances on account of wrong determination of the date of next increment in the revised pay scale effective from January 1, 1978. The third respondent advised the second respondent to intimate the final position concerning the recoveries in light of the overall circumstances in order to enable the issue of authorization for the payment of the DCRG. The necessary corrigendum with regard to the date of increment was thereupon issued by the second respondent as late as on May 20, 1985. The third respondent advised the second respondent to intimate the final position concerning the recoveries in light of the overall circumstances in order to enable the issue of authorization for the payment of the DCRG. The necessary corrigendum with regard to the date of increment was thereupon issued by the second respondent as late as on May 20, 1985. Even on the date of the institution of the petition, the third respondent was not given any intimation with regard to the actual sum recoverable as Government dues, if any, in spite of the fact that he had sent two reminders to the second respondent on April 30, 1985 and June 24, 1985. These facts are on eloquent proof of the culpable delay in the settlement and disbursement of the amount of DCRG to the petitioners. It cannot be overlooked, in this connection, that the second respondent was under a legal duty to take steps to ascertain and determine the Government dues, other than those pertaining to the allotment of Government accommodation, within one month of the receipt of the intimation regarding the death of the husband of petitioner No. 1 and that not more than ten percent of the amount of gratuity, or rupees one thousand, whichever is less, could have been withheld for the adjustment of Government dues which had not been assessed till the stage of the forwarding of the pension papers to the third respondent within one month of the receipt of the claim from the petitioners. It cannot be overlooked also that after the pension papers were accordingly forwarded also that after the pension papers were accordingly forwarded, the second respondent was under a legal duty to issue a sanction letter and to disburse the DCRG amount on a provisional basis in accordance with law. Even if the service record of the deceased was incomplete, the second respondent was duty bound to follow the prescribed procedure and to order the payment of the DCRG amount on a provisional basis in terms of Rule 79 read with Rule 50. None of these steps are shown to have been taken or taken within the prescribed time limits. The relevant rules have been observed more in breach than compliance. The explanation furnished in the return in this regard is not acceptable. None of these steps are shown to have been taken or taken within the prescribed time limits. The relevant rules have been observed more in breach than compliance. The explanation furnished in the return in this regard is not acceptable. There is no reason why the physical verification of stock/store could not have been completed till September 26, 1983 although petitioner No. 1 had offered the keys of the store on June 3, 1983 and the keys were in any case recovered from her on August 1, 1983. Besides, there is no reason why a firm decision could not have been arrived at, even after the verification, with regard to the recovery on account of the alleged shortage in stock/store till the writ petition was filed and an interim order was made. Even if the Government dues were not ascertained and the service record was not complete there is no reason why the gratuity on a provisional basis could not have been paid as provided in the Rules. Having regard to these and other circumstances of the case, there is no manner of doubt that there has been a culpable delay in the settlement and disbursement of the DCRG amount to the petitioners. There is no reason, therefore, why the payment of the gratuity in the sum of Rupees 17,360,00 should not be ordered to be made with interest at the rate of 12 percent per annum from August 1, 1983 till the date of deposit, especially when the ascertainment and adjustment of the Government dues, which have since been determined and ordered to be deducted from the amount of DCRG, pursuant to the interim order made pending the final hearing of the petition, are found to be wholly without the authority of law. The interest payable accordingly will be deposited in the Registry of this Court by the first and second respondents within a period of fifteen days from today. Upon such deposit being made, each of the petitioners will be entitled to withdraw the said amount in the same proportion in which he/she is entitled to the amount of DCRG. 5. SIMILARLY, the Division Bench of this Court in Amar Chand versus Union of India and another, I.L.R. 1985 page 601 has held that the salary is a property of an employee and recovery for loss caused can only be under authority of law. 5. SIMILARLY, the Division Bench of this Court in Amar Chand versus Union of India and another, I.L.R. 1985 page 601 has held that the salary is a property of an employee and recovery for loss caused can only be under authority of law. The Division Bench has held as under: "4. In the present case, the situation is comparable. The impugned order, Annexure PC, directing the voluntary payment of Rupees 10,000/ by the petitioner and others, has been admittedly issued without following even a semblance of the procedure prescribed in Rule 16 and without affording to the petitioner and persons similarly situate any opportunity whatsoever to show cause against the fixation of the responsibility for the stated default as well as against the so called "voluntary " reimbursement of the alleged loss caused to the Government. Such an order is wholly devoid of power, authority and jurisdiction and is also contrary to the mandate of Article 300 A. No payment with compliance reported can be directed to be made by Government servant for the alleged loss sustained by the Government on account of his act(s) of omission or commission, even though the direction may be described as requiring compliance "voluntarily ", without satisfying the requirements of law and natural justice. Taking a stock of the practical realities of the situation the impugned order in substance is an order of recovery and it is difficult to comprehend how the order of recovery could be treated as requiring volitional compliance. The order, Annexure PC must, therefore, be held to be devoid of any legal force. No recovery could have been or can be effected from the petitioner on the strength of the said order. Be it stated that in order to avoid proliferation of litigation and hardship and inconvenience to other persons similarly situate, no recovery shall be effected even from them under the impugned order, Annexure PC and, if already effected, the amount recovered shall be refunded to the person(s) concerned. " 6. Be it stated that in order to avoid proliferation of litigation and hardship and inconvenience to other persons similarly situate, no recovery shall be effected even from them under the impugned order, Annexure PC and, if already effected, the amount recovered shall be refunded to the person(s) concerned. " 6. THE Division of this Court in Vidya Sagar Sharma versus State of H.P. through Secretary (Forests) and others, I.L.R. 1986 page 20 has held that a reasonable opportunity of hearing coupled with the duty to act judicially and to arrive at a just and fair decision pursuant to an inquiry held in accordance with law must, therefore, be regarded as implicit in the relevant provisions of the Pension Rules and a sine qua non to the exercise of the power or ascertainment and assessment of Government dues and of their recovery out of or adjustment against the DCRG payable to a retiring or a retired Government servant. The Division Bench has also held that when inquiry is not held to ascertain and assess the amount sought to be recovered, the action shall be arbitrary and illegal. The Division Bench has further held that pension is not a bounty, but a valuable right. The Division Bench has explained the word "due" means that which is owed and a debt or other obligation is due when it is legally enforceable. The Division Bench has held as under: "12. In order to appreciate the rival contentions, it is necessary to refer to a few provisions of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as "the Pension Rules"). Before we do so, however, the general legal position bearing on the right to pension requires to be adverted to briefly. Pension is not a bounty payable on the sweet will and pleasure of the State. The right to pension is a valuable right vesting in a Government servant. The grant of pension does not depend upon an order being passed by the authorities to that effect. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect but the right to receive pension flows to the employee not because of the said order but by virtue of the Rules. It may be that for the purposes of quantifying the amount having regard to the period of service and other allied matters, it may be necessary for the authorities to pass an order to that effect but the right to receive pension flows to the employee not because of the said order but by virtue of the Rules. The said right was, indeed, regarded as "property" and, therefore, a Fundamental Right within the meaning of sub clause (f) of Clause (1) of Article 19 and of Article 31 (See: Deokinandan Prasad V. State of Bihar and others, AIR 1971 SC 1409 ). With the simultaneous deletion and enactment of sub clause (f) of Clause (1) of Article 19 and Article 31 on one hand and Article 300 A on the other, the right to property has ceased to be a Fundamental Right but it still retains the character of a constitutionally recognized legal right. Since the right to receive pension was held to be property under Article 19(1)(f) and Article 31(1), it must be regarded as falling within the coverage of Article 300 A which provides that no person shall be deprived of his "property " save "by authority of law ". Article 300 A thus safeguards the right to receive pension against executive interference which is not supported by law and "la" here means "enacted law " or "State law ". Besides, such law must be a valid and binding law under the provisions of the Constitution having regard to the competence of the legislature and the subject it relates to and should not infringe on any of the Fundamental Rights which the Constitution provides for. Besides, such law must be a valid and binding law under the provisions of the Constitution having regard to the competence of the legislature and the subject it relates to and should not infringe on any of the Fundamental Rights which the Constitution provides for. It is apparent, therefore, that the substantive or procedural provisions of such law or the executive action supported by such law cannot be arbitrary, unfair, unjust, oppressive or unreasonable (See: A.K. Gopal vs. State of Madras, AIR 1950 SC 27 and Smt. Maneka Gandhi vs. Union of India and another, AIR 1978 SC 597 wherein the work "law " occurring in Article 21 has been given similar meaning and has been held to be subject to similar limitations.) The antiquated notion of pension being a bounty, a gratuitous payment depending upon the swee will or grace of the employer not claimable as a right, and, therefore, not enforceable through Court, has thus been swept under the carpet by these judicial dicta of the highest Court which have interpreted the relevant constitutional provisions and statutory law. 13. There is another aspect of the matter which must also be adverted to. As held in D.S. Nakara vs. Union of India, AIR 1983 SC 130 , a political society, which has a goal of setting up of a welfare State, would introduce and has in fact introduced as a welfare measure, wherein the retiral benefit is grounded on considerations of State obligation to its citizens who, having rendered service during the useful span of life, must not be left to penury in their old age. Pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that, it is a measure of social economic justice, which inheres economic security in the fall of life, when physical and mental prowess is ebbing corresponding to ageing process and, therefore, one is required to fall back on savings. The Constitution having set up the political society which has a welfare socialistic State as its goal and with the obligation created under Articles 39(e), 41 and 43(3) of the Constitution, pension as a retirement benefit is in consonance with and in furtherance of the goals of the Constitution. The Constitution having set up the political society which has a welfare socialistic State as its goal and with the obligation created under Articles 39(e), 41 and 43(3) of the Constitution, pension as a retirement benefit is in consonance with and in furtherance of the goals of the Constitution. The State, as well as all its agencies and instrumentalities, must, therefore, so regulate their dealings with the employees as to advance the aforesaid purpose and not to defeat it. 18. It would be appropriate, at this stage, to comprehend the true legal connotation of the word "dues" and to examine the related aspect of the procedure which will be required to be adopted in order to ascertain and assess them. An eminent English Judge, Darling, J., has defined the expression "due" thus: " I think, in a legal sense, that money only can be said to be due, which may be recovered by action. That which as man is under no legal obligation to repay, for whatever reason, is in my opinion, no longer money "due " [See: Re Moss (1905) 2 K. B. 307].The word "due " means that which is owed and a debt or other obligation is due when it is legally enforceable, that is, when the creditor has a right to demand payment and to enforce collection (See: Custodian General of Evacuee property New Delhi and others vs. Harnam Singh, AIR 1957 Punjab 58). While ascertaining and assessing under Rules 71 and 73 the Government dues, if any, remaining outstanding against a Government servant till the date of his retirement, the Head of Office must, therefore, be satisfied that such dues consist of a definite sum(s) of money answering the description contained in sub rule (3) of Rule 71 and that the Government servant is under a legal obligation to pay the sum and that the Government has a right to demand payment and enforce collection thereof. 19. 19. In light of the aforesaid meaning in law of the word "dues ", which governs also the Government dues of the nature specified in sub rule (3) of Rule 71, it is apparent that the Head of Office, will have together, in the first instance from different sources all the material particulars in order to satisfy himself whether any ascertainable sum(s) is factually owed by the Government servant to the Government and whether such sum is outstanding till the date of his retirement and, if so, whether the debt is legally enforceable and recoverable from the Government servant. In the very nature of things, several questions of fact and law may arise in the process of such ascertainment, especially when the Government servant disputes his liability, and in order to determine those questions, the Head of Office will have to hold some sort of an inquiry, suitable to the occasion and appropriate in the circumstances of the case. The adoption of such a procedure is inevitable on the part of the Head of Office in order to arrive at a just, proper and legal decision in the discharge of the duty entrusted to him under the law. The association of the Government servant with such an inquiry must be regarded as essential in order to gather facts and/or to seek clarifications on issues of fact and law and/or to ascertain whether he admits or denies the liability wholly or partially, and to give him an opportunity to correct or controvert the material sought to be relied against him and/or to put forward his own version concerning the matter. The process of ascertainment of Government dues cannot but be regarded as quasi judicial in nature, since, the ultimate decision may result in the recovery of such dues from the amount of DCRG, which is property, and may thus involve civil consequences for the Government servant. A reasonable opportunity of hearing coupled with the duty to act judicially and to arrive at a just and fair decision pursuant to an inquiry held in accordance with law must, therefore, be regarded as implicit in the relevant provisions of the Pension Rules and a sine qua non to the exercise of the power of ascertainment and assessment of Government dues and of their recovery out of or adjustment against the DCRG payable to a retiring or a retired Government servant. Unless the Rules are so understood and enforced, they would be exposed to the vice of unconstitutionally. 20. Against the aforesaid background, the question may be first examined whether the non release of the DCRG, on the ground that a recovery is to be effected therefrom on account of the alleged over payment of salary in the sum of Rs. 1226.05 pursuant to the re fixation of pay, is legally justified. The alleged excess payment in the afore mentioned sum is stated to have resulted on account of the wrong fixation of pay of the petitioner in the revised scale due to clerical mistake arising out of an error of judgment and the refixation is stated to have been made in accordance with the instructions issued by the State Government in that regard. The particulars furnished in para 3 of the affidavit in reply of the third respondent show that the refixation accordingly done results in the reduction of the pay of the petitioner in the revised scale by Rs. 25/ on and from January 1, 1978 and that the reduction accordingly made is reflected all throughout from month to month till the date of his retirement. It is not in dispute that no opportunity whatsoever was given by the concerned respondents to the petitioner before the aforesaid Government dues were ascertained and recovery was ordered. 25/ on and from January 1, 1978 and that the reduction accordingly made is reflected all throughout from month to month till the date of his retirement. It is not in dispute that no opportunity whatsoever was given by the concerned respondents to the petitioner before the aforesaid Government dues were ascertained and recovery was ordered. If such an opportunity had been afforded he could have pointed out that the pay was initially correctly fixed in the revised pay scale at the proper stage and that there was no over payment either as a result of a mistake of law or of fact, or that the Government was not entitled to recover the alleged over payment, spread over a period after such a lapse of time, or that the Government was estopped from claiming restitution since the over payments, if any, were made due to the negligence in the discharge of duty on the part of the concerned employees of the respondents to determine the emoluments correctly and not to misrepresent them, and since the petitioner, bona fide, in reliance on the conduct in making the payment from month to month over a period of time, was entitled to treat the money as his own, and without notice of their claim, had spent the whole of the sums over paid in ordinary living expenses or otherwise for his own purposes, and that it would be unjust and inequitable to recover from the pensionary benefits those sums. It would not be out of place to mention in this connection that the petitioner has, in fact, raised a serious dispute with regard to the refixation of his pay upon revision on more than one ground and that the petitioner could have legitimately pleaded, if a fair opportunity of hearing had been afforded to him, that there was, in fact, no over payment of pay and allowances and that such over payment, if any, should at least be waived of. Under the circumstances, the refixation of the pay of the petitioner in the revised pay scale behind his back is arbitrary and illegal and so is the consequential decision to order the recovery of the sum of Rs. 1226.05 from the DCRG payable to him on the ground of the alleged excess payment of salary. " Accordingly, in view of the observations and discussions made hereinabove, the writ petition is allowed. 1226.05 from the DCRG payable to him on the ground of the alleged excess payment of salary. " Accordingly, in view of the observations and discussions made hereinabove, the writ petition is allowed. Respondent Board is directed to release a sum of Rs. 10,34,746/ to the petitioner within a period of four weeks from today. However, it shall be open to the respondent Board to proceed with the matter in accordance with law. Pending application(s), if any, also stands disposed of. No costs.